Hot Topics:

Opinion

Nanda: Edward Snowden case weaves a tangled web

By Ved P. Nanda

Posted:
06/30/2013 12:01:00 AM MDT

Updated:
06/30/2013 01:45:40 AM MDT

Journalists await passengers of a flight from Hong Kong while trying to ascertain whether fugitive former U.S. spy agency contractor Edward Snowden was aboard, at Moscow's Sheremetyevo airport on June 23. (Sergei Karpukhin, Reuters)

Never has an extradition request led to the kind of diplomatic dispute the Edward Snowden case has created. China and Russia have defied the U.S. by refusing its demand to extradite Snowden to face charges here for espionage and theft of government property. Both countries rebuffed the U.S. warning that if Snowden is not extradited, "consequences" and "repercussions" will follow.

Will this event further fray U.S. relations with these powerful countries? What does the future hold for Snowden?

Snowden left Hawaii for Hong Kong on May 20, and hid there, disclosing to The Guardian newspaper on June 5 the National Security Agency's top-secret surveillance programs. After the United States indicted him and revoked his passport, Snowden fled to Moscow last Sunday.

Confirming that Snowden was in the "transit zone" of Moscow's Sheremetyeno Airport, Russian President Vladimir Putin said that as Snowden has not technically crossed the border into Russia, he is a "free person," and since the United States and Russia do not have a formal extradition treaty, he will not be extradited.

Under international law, extradition is the formal surrender of a person by a state to another state most affected by a crime for prosecution or punishment. America's federal extradition statute authorizes the extradition of fugitive aliens even in the absence of a treaty. Many extradition treaties contain a "political offense" exception, which includes espionage.

Advertisement

White House press secretary Jay Carney condemned China on Monday, stating that "this was a deliberate choice by the government to release the fugitive despite a valid arrest warrant," which "unquestionably has a negative impact on the U.S.-China relationship." The Chinese responded by accusing the United States of "cyber security hypocrisy" and using a "double standard." The Chinese state-owned news agency Xinhua said in an editorial that "the United States, which has long been trying to play innocent as a victim of cyber attacks, has turned out to be the biggest villain in our age."

Also on Monday, U.S. Secretary of State John Kerry criticised Russia as repressive, to which Russian foreign minister Sergey Lavrov responded, "There are no legal grounds for this kind of behavior from American officials toward us." Putin described the U.S. criticism of Russia as "rubbish."

However, both sides have now toned down their rhetoric. While in Saudi Arabia Kerry said, "We are not looking for a confrontation. ... We are simply requesting [Snowden's transfer] under a very normal procedure." And Putin said he hoped that the Snowden case would "not affect in any way the businesslike character of our relations with the United States." Both Carney and Lavrov have echoed these sentiments.

Snowden has very few options, as of this writing on Thursday. From Moscow, he cannot connect on flights through the airport of any country that might arrest him and extradite him to the United States. This means he can only go to Havana, then catch a connecting flight to Caracas, Venezuela, before reaching Quito, Ecuador, his ultimate destination. While all these countries have extradition treaties with the United States, they could conceivably use the "political offense" exception, but these countries now seem to be interested in improving their relations with America.

Ecuador faces a special challenge if it provides Snowden asylum. Forty-three percent of Ecuador's total exports are to the United States and it receives a trade preference from the U.S., a measure that expires next month. Sen. Robert Menendez, D-N.J., chairman of the Senate Foreign Relations Committee, said if Ecuador granted asylum to Snowden, he would move to cut Ecuador's duty-free access to the U.S. market. On Thursday, Ecuador unilaterally revoked this special deal.

Meanwhile, the debate continues whether Snowden is a whistleblower and a hero, or a criminal and a traitor.

Ved P. Nanda (vnanda@law.du.edu) is Thompson G. Marsh Professor of Law and Director of the International Legal Studies Program at the University of Denver Sturm College of Law.

Missy Franklin, Jenny Simpson, Adeline Gray and three other Colorado women could be big players at the 2016 Rio OlympicsWhen people ask Missy Franklin for her thoughts about the Summer Olympics that will begin a year from Wednesday in Rio de Janeiro, she hangs a warning label on her answer.